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In 2024, the US Foreign Corrupt Practices Act (FCPA) and related laws will continue to present potentially significant risks requiring attention by senior management and boards. Here are six key trends to watch.

1. Case numbers are down but enforcement remains a priority

Although the number of announced corporate FCPA dispositions has been lower in the past several years than pre-pandemic levels, the US Department of Justice (DoJ) and the SEC will continue to focus on FCPA enforcement, as indicated by recent speeches and cases.



Read The Article - Trends to watch

The Department of Justice (DOJ) has been making significant strides in emphasizing the importance of voluntary self-disclosure in corporate enforcement cases, particularly in the realm of the Foreign Corrupt Practices Act (FCPA). This shift in approach is evident in recent policy announcements and enforcement actions, beginning with the 2022 ABB Foreign Corrupt Practices Act (FCPA) settlement, to the 2023 Albemarle FCPA resolution and continuing through to the 2024 SAP Foreign Corrupt Practices Action settlement. Through these three resolutions, the DOJ made clear that its most important criteria for evaluating a company for a fine under the FCPA is whether or not it self-discloses.

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Each month we publish a roundup of the most important SEC enforcement developments for busy in-house lawyers and compliance professionals. This month, we examine:

• The SEC’s approval of spot bitcoin ETPs;
• SEC charges against a $1.7 billion alleged crypto Ponzi scheme;
• A new SPAC rule and SPAC enforcement actions;
• Two SEC “affinity” fraud settlements; and
• An FCPA anti-bribery case with disgorgement of almost $100 million.

Read The Article for details of the top 5

It's that time of year again when we peer into the crystal ball and predict what direction the profession will take. And remember this - companies that fail to get on top of the changing face of internal controls may suffer the following:

• Elevated risk exposure to fraud
• Increased wastage of money through errors
• Failures in regulatory compliance
• Reputational damage

So, with that said, let's now delve into the five trends for 2024 that your internal controls team needs to know about.

Read The Article

The increased frequency and severity of cyberattacks has resulted in increased pressure on companies at a global level to prepare for, mitigate against, and disclose the impacts of these attacks. This pressure may be most clearly illustrated by the SEC’s recently adopted rules around incident disclosure. Beyond the SEC, investors have also recognized the increased importance of portfolio companies successfully overseeing and managing cybersecurity risks. Large investors and their stewardship teams, as well as proxy advisors, are rapidly evolving their expectations for Boards and management teams to demonstrate robust cybersecurity programs are in place:

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In a rare case, earlier this year, the U.S. Department of Justice (DOJ) declined to prosecute a company even though it had apparently bribed foreign government officials in violation of the U.S. Foreign Corrupt Practices Act (FCPA). The U.S.-based mining company was alleged to have paid almost $5 million in bribes directly and through third party agents to Egyptian government officials to obtain lucrative contracts to supply coal to an Egyptian state-owned company. These contracts were worth nearly $150 million, and the company earned almost $33 million in profits. Yet, the DOJ declined to prosecute the company. It is an infrequent occurrence but one that is reflective of the DOJ’s current enforcement policy, which gives various forms of relief and, potentially, an avenue to avoid prosecution, if a company that has engaged in improper conduct meets certain criteria. In this case, the DOJ stated its decision to decline prosecution was primarily because the company:

Read The Article to find out the DOJ's reasoning

In the 20 years since the Sarbanes-Oxley Act of 2002 (SOX) became federal law, much has changed both inside and outside the corporate walls, with significant developments in related technology, methodology, and whole business environments. The SOX program at many companies, however, may not have evolved at the same pace, or at all.

Some SOX programs may have continued to layer on additional controls over the years, while spending the same amount or more to achieve compliance without being able to extract value from the program. Organizations in this scenario could be testing too many controls or may not be focused on the risk areas that matter most. As a result, they may not be attaining reasonable assurance over the operating effectiveness of internal control over financial reporting or may

have larger than necessary cost of compliance. Now may be the right time for CFOs and compliance officers to consider refreshing, rethinking, and modernizing the SOX program.

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In Murray v. UBS Securities, LLC the United States Supreme Court resolved a circuit split, holding that whistleblowers asserting retaliation claims under Sarbanes-Oxley must prove protected activity was a contributing factor in the unfavorable personnel action. The Supreme Court’s holding rejects the standard previously applied by the Second Circuit that an employee must prove that an employer had retaliatory intent to discriminate against an employee because they engaged in protected activity. Sarbanes-Oxley prohibits retaliation against employees of publicly traded companies who report violations of federal securities laws and regulations. The burden of proof adopted by the Supreme Court is lower and more employee friendly than the one previously applied in the Second Circuit. It means that an employee only needs to show that the protected activity “alone or in combination with other factors tended to affect in any way” the adverse decision.

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Contact: Mr.Nikolai Triffet 

Email: nikolai@icib.org

Contact: Mr Nereo Guzman Mendoza

Email: nguzman@businesssolutionvalley.com

Tel: +52 811 181 3514

Control Quote

“Whether you think you can or you think you can’t, you’re right.” – Henry Ford